Telangana river waters, irrigation & agriculture-6 (Evolution of Indian water law)

Water in the ancient Indian culture

Water plays a crucial role in the ancient Indian way of life that is recognized both in the Vedas and the Upanishads. Water is treated as the second of the five primordial elements (panchamahabhuth).

Varuna is the god of water, sky and oceans. Befittingly, Makara (crocodile) is his mount. Rather surprisingly, rain & thunder are the domain of another dikpalaka (guardian of direction) i.e. Indra, the leader of gods.

Lakshmi, the consort of Vishnu, is the daughter of the ocean. Ganga (Ganges), the celestial river, is one of the consorts of Mahadeva.

Matsya (fish), the first avatar of Vishnu, appeared to Satyavrata (later known as Manu, the law giver) when he was washing his hands in a river. The story detailed in Matsyapurana speaks about a deluge and a huge boat that Manu housed with his family, animals & seeds in order to repopulate the earth (somewhat like Noah's ark).

Kurma (tortoise), the second avatar, contributed to the churning of the celestial ocean that culminated in the discovery of nectar.

The Indian epics too contain several references to water. Sage Bhagiratha is credited with the descent of the Ganga to earth. Ganga is also linked to the story of Santanu & Bhishma.

Vasudeva while spiriting away his newborn son Krishna from the evil Kamsa crosses a flooded Jamuna. In a different story, Krishna challenges the need to pray to Indra for rain. The story ends with Krishna lifting a hill on his little finger to provide a shield for his people from the rain unleashed by Indra in retaliation.

Water is an essential component of all Hindu rituals. Most pujas require the use of water from a kalasa (pot). Ritual purification and bathing are quite common.

Water is essential in death as well. After cremation, the family members take a ritual bath in the river. The ashes from the pyre are ceremonially cast in a river in a separate ceremony. Sinners cross the Vaitarna river on their way to naraka (hell).

Rivers like Ganga, Jamuna, Krishna, and Cauvery are treated as sacred. Their names are often suffixed with the local language word for "mother". River banks are dotted with temples throughout India. A sangam (confluence of rivers) is likewise treated as a sacred place. Triveni sangam at Prayag (the confluence of Ganga, Jamuna and the mythical river Saraswati), a major Kumbh Mela venue, is considered to be one of the holiest spots in the world. Several major rivers celebrate similar pushkar festivities.

Indian law under Hindu rulers

MS Vani published a paper titled "Customary Law and Modern Governance of Natural Resources in India- Conflicts, Prospects for Accord and Strategies". This paper is in part based on a Ford Foundation project called “Law and Custom in Water Resources Administration in Uttaranchal State, India”.

Vani describes (pages 7-13) in great detail the Hindu jurisprudence framework. She writes the framework was based on three "delicately balanced" sources: dharma, royal order and custom. She cites AL Basham that dharma and custom were generally held inviolable. Kings were expected to uphold dharma and let subjects follow their customs.

Vani cites Basham on the relationship between the three sources: "Generally, Dharma was thought to override all other sources of law, though the Arthashastra maintained that the royal ordinance overrides the others. However, this doctrine is ascribed to the totalitarianism of the Mauryas, which few jurists would have supported".

Vani lists the four bases of justice (in the order of increasing importance) citing Arthashastra verses 3.1.39 & 40: dharma based on truth; evidence based on witness testimony; custom based on accepted tradition and royal edicts based on promulgated law.

Cullet & Gupta (page 4) cite the same four bases from Arthashastra. They concur with Vani that the kings were required to ensure dharma and let existing customs continue.

Water rights under Hindu law have been described earlier in adequate detail. The brief discussion here is to establish the theoretical foundation of these rights.

Indian Water law under Muslim rulers

Cullet & Gupta cite (page 5) IA Siddiqui to show the "Islamic rulers refrained from significant intervention in existing arrangements". This may have been with because "the relatively high availability of water in India precluded conflicts with Islamic norms".

Vani concurs (page 13) quoting Marc Galanter:

"Under Muslim rule, the judicial system remained a plural one. Muslim populations were governed by Muslim law in criminal, civil and family matters and disputes settled before royal courts established in cities and administrative centers. Hindus were generally allowed their own tribunals in civil matters. When such matters came before royal courts, Hindu law was applied and sustained by the sanctions of the State. While there was a hierarchy of courts and rights of appeal, there was no supervision of lower courts. No attempt was made to control the administration of law in the villages".

These findings are consistent with the fact that India was generally not regarded as a dar al-salam under Muslim rule.

Water law under the British Raj

Cullet & Gupta write (pages 5-6) the British did not, until 1857 (i.e. under "company rule") interfere with local custom unless it impacts their own policies. After the assumption of direct crown control in 1858, they began to invest in and regulate canals & irrigation.

The authors cite Dellapenna:

"British colonial water law had two main strands. First, control over water and rights to water were regulated through the progressive introduction of common law principles, emphasizing the rights of landowners to access water. For surface waters, riparian rights allow a landowner the right to take a reasonable portion of the flow of a watercourse".

The laws established in the above pursuit include:

·         Embankment Regulation, 1829

·         Bengal Embankment Act, 1855

·         Northern India Canal and Drainage Act, 1873

·         Indian Easements Act, 1882

Cullet & Gupta consider the Northern India Canal and Drainage Act, 1873, as an important enactment in the evolution of Indian water law. This law regulated irrigation, navigation and drainage in much of North India.

They write "While this Act did not directly assert the state’s ownership over surface waters, it recognized the right of the Government to ‘use and control for public purposes the water of all rivers and streams flowing in natural channels, and of all lakes’".

This trend was strengthened over time with the passage of other laws. The colonial rulers also introduced the division of responsibilities and a conflict resolution mechanism. According to Cullet & Gupta:

"The Government of India Act (1935) empowered the provinces to take decisions on water supply, irrigation, canals, drainage and embankments, water storage and hydropower. Conflicts between provinces and/or princely states were subjected to the jurisdiction of the Governor General who could appoint a commission to investigate the sufficiently important conflicts".

Lahiri looks at water rights in the early colonial period and explains the situation in greater detail:

"More provincial autonomy came in the form of Entry 19 of List-2 to the 7th Schedule of the Government of India Act, 1935 by which power to legislate on “water, that is to say water supplies, irrigation and canal, drainage and embankments, water storage and water power” was transferred by Entry 19 of List 2 in the 7th Schedule of the Act of 1935 to the Provincial Government. The executive authority of the provinces were also made co-extensive or co-terminus with its legislative power by virtue of Section 49 (2) of the Act of 1935 and subject to the restrictions placed by Sections 130 to 133 of the Act of 1935.

The Provincial Government was free to do what it thought fit in respect of water supplies within its province. However, this was subject to the provisions of Sections 130 to 133 under which the Governor General could, on the basis of a complaint by one province against another regarding interference with its water supplies, appoint a Commission to investigate the matter and submit a report on the basis of which the Governor General could pass final orders unless any party to the dispute desired a reference to His Majesty in Council for final order. Such orders made by the Governor General or His Majesty in Council, as the case may be, were binding on the provinces affected thereby unless varied. All these central safeguards indicate that even under the Government of India Acts, 1919 and 1935 no province could take action which would prejudicially affect the interest of another province or its people".

KWDT reiterates (volume I, page 9) the position: "Under the Government of India Act, 1935, water became an exclusive provincial subject and specific provision was made for settlement of water disputes".

KWDT returns to the subject later (volume I, page 104) elaborating in greater detail:

"Under the Government of India Act, 1935, as from the 1st April, 1937, water became an exclusive provincial subject and specific provision was made in sections 130 to 134 of the Act for decision of water disputes".

Godavari Water Disputes Tribunal (GWDT) agrees with this assessment stating (page 95): "British India was subject to the unitary control of the Government of India and even the princely states were under its paramount control. Under the Government of India Act, 1935 water became an exclusive provincial subject and specific provision was made for the settlement of water disputes".

The situation prior to the passing of the 1935 act (labeled "pre-genesis" by Lahiri) was to a good extent different. CWDT (volume IV, page 36) mentions the dispute between Madras & Mysore on the former's insistence on a particular flow of water in its territories ahead of the 1924 agreement on Cauvery water sharing. The award of the arbitrator, Justice HR Griffin, was challenged by Madras. CWDT summarizes the final decision: "In due course it went upto the Secretary of States who set aside the said award with certain directions".

The situation before the 1935 Act is summarized by KWDT (volume I, page 104) as:

"Till 1921, irrigation works were subject to the unitary control of the Central P.W.D. Since 1921, under the Government of India Act, 1915, as amended by the Government of India Act, 1919, "Water supplies" became a provincial subject, but even then the Government of India could decide inter-Provincial water disputes".

"The Government of India used to decide inter-Provincial water disputes on administrative considerations".

"Under the Government of India Act, 1935, as from the 1st April, 1937, water became an exclusive provincial subject and specific provision was made in sections 130 to 134 of the Act for decision of water disputes".

KWDT is somewhat skeptical about the pre-independence situation (volume I, page 104): "Though the Government of India in the exercise of its powers of paramount control professed to apply rules of international law and the precept of the greatest good to the greatest number irrespective of political boundaries, the actual settlement of the disputes used to be made on political considerations".

Vani analyzes (pages 19-20) the impact of the introduction of the colonial legal system in Indian traditions. She states this made the system rigid, reduced the importance of the traditional dispute resolution mechanisms and in general paved the way for disintegration of customs preserved for ages. She writes: "The rule of stare decisis put paid to the flexibility of Indian law by obviating innovation in shastric and customary law to meet changes in community opinion and sentiment. The modern legal machinery ‘forces local law to fall in line with national standards’".

Water law in independent India

Lahiri explains the legal situation in India is similar to that of England. He quotes Halsbury's Laws of England:

“86. Rights in flowing water at common law. Although certain rights as regards flowing water are incident to the ownership of riparian property, the water itself, whether flowing in a known and defined channel or percolating through the soil, is not at common law, the subject of property or capable of being granted to anybody. Flowing water is only publici juris in the sense that it is public or common to all who have a right of access to it.

87. Statutory rights in flowing water. Proprietary interests in water flowing in certain channels may be, and have in certain instances been, created by Act of Parliament. Rights can also be obtained to abstract water”.

KWDT (volume I; page 79) reiterates the Indian legal situation vis-à-vis that of England:

"The Indian law is based on the common law of England. The common law doctrine has been considerably modified in England by the Water Resources Act 1963, Chapter 38, sections 23 to 32, but the general Indian law continues to be the same as before".

The term "publici juris" needs to be understood carefully. It is understood to mean "public right" or "common property" available to everyone in the community. This does not make it a property in the conventional sense. Flowing water, like air or light, is not susceptible to ownership by anyone including the state.

Lahiri shows the Government of India Act, 1935 continued to be applicable even after independence till the Indian constitution came into effect. He also demonstrates the Indian constitution broadly adopts the scheme of Government of India Act, 1935. For instance, state control over water enshrined under entry 19 of list-2 of the 7th schedule of the 1935 act were reiterated under entry 17 of list 2 to the 7th schedule of the constitution. The central government role was defined under entry 56 in list 1 on lines similar to the 1935 act. Similarly the exclusion of jurisdiction clause from section 133 of the 1935 act was embodied in article 262 (2).

The applicable text from the lists is shown below:

Entry 56 of List I ("union list") of Seventh Schedule: "Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest".

Entry 17 under List II ("state list") of Seventh Schedule: "Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I".

The year 1956 can be regarded as a milestone in the history of the Indian water law. Inter-State (River) Waters Disputes Act (ISDA) came into effect paving the way for the resolution of simmering inter-state water disputes. The lesser known but potentially significant River Boards Act (RBA) that enables the setting up of a board to regulate and develop inter-state rivers and river valleys was also adopted in the same year.

With the introduction of a sovereign constitution derived from "we the people", the Indian jurisprudence firmly asserts the supremacy of constitutional law over other sources. In a way, Kautilya's dictum on the inter-relationship between the "four bases of justice" has now been established albeit under a democratic regime.

Water law in India: a brief summary

The evolution of water law in India can be broadly divided into the following "eras":

·         Before the assumption of direct crown control in 1858

·         1858-1935 till the passing of the 1935 act

·         Till 1950, when the Indian constitution came into effect

·         After 1950

It can be argued that the dates are slightly different e.g. perhaps the current phase began in 1956. What is more important, however, is to note these different periods correspond to qualitative changes in the legal perspective surrounding water rights. It is unquestionable that the four eras are demonstrably different.

Lahiri terms the period 1949-2004 as the evolution phase. He traces the history of the ISDA act from the original draft in 1955 till its adoption in 1956.

It is interesting to note these eras do not necessarily relate to or arise from regime change. For instance, the "traditional rights era" continued through Hindu kingdoms, Muslim rule and company hegemony.

"Hinduism is like the Ganga, pure and unsullied at its source but taking in its course the impurities in the way. Even like the Ganga it is beneficent in its total effect. It takes a provincial form in every province, but the inner substance is retained everywhere": MK Gandhi